576 F.2d 405 (2nd Cir. 1978), 471, Carmona v. Ward
|Docket Nº:||471, Docket 77-2110.|
|Citation:||576 F.2d 405|
|Party Name:||Martha CARMONA and Roberta Fowler, Petitioners-Appellees, v. Benjamin WARD, Commissioner of the New York State Department of Correctional Services, Frances Clement, Superintendent, Bedford Hills Correctional Facility, Bedford Hills, New York, Frank Caldwell, Acting Chairman of the New York State Board of Parole and the New York State Board of Parol|
|Case Date:||April 21, 1978|
|Court:||United States Courts of Appeals, Court of Appeals for the Second Circuit|
Argued Dec. 13, 1977.
Arthur L. Liman, New York City (Paul, Weiss, Rifkind, Wharton & Garrison, Mark C. Morril, Legal Action Center of the City of New York, Inc., Deborah M. Greenberg, Margaret K. Brooks, Harlon L. Dalton, Lawrence S. Goldman, Washington Square
Legal Services, Charles D. Terry, E. Judson Jennings, New York City, Elizabeth Bartholet, Cambridge, Mass., Michael Meltsner, New York City, of counsel), for petitioners-appellees.
Gerald J. Ryan, Asst. Atty. Gen., Buffalo, N. Y. (Louis J. Lefkowitz, Atty. Gen., State of New York, Samuel A. Hirshowitz, First Asst. Atty. Gen., New York City, of counsel), for respondents-appellants.
Sol Greenberg, Dist. Atty. of Albany County, Albany, N. Y. (Dennis M. Acton, Albany, N. Y., of counsel), for intervenor for appellants.
Before MULLIGAN, OAKES and VAN GRAAFEILAND, Circuit Judges.
MULLIGAN, Circuit Judge:
Benjamin Ward, Commissioner of the New York State Department of Correctional Services, Frances Clement, Superintendent, Bedford Hills Correctional Facility, Frank Caldwell, Acting Chairman of the New York State Board of Parole, and the New York State Board of Parole (Respondents-Appellants), appeal from an order entered on August 17, 1977 by the Hon. Constance B. Motley in the United States District Court for the Southern District of New York. The order resulted from a habeas corpus proceeding challenging the constitutionality of the confinement of petitioners Martha Carmona, Roberta Fowler and Donna Foggie. 1 The court found that the indeterminate sentences being served by Carmona and Fowler were unconstitutional because of the maximum mandatory life terms which were imposed. It ordered that the petitioners be discharged from custody at the expiration of their minimum terms of imprisonment unless new maximum sentences were imposed which, in the judgment of the district court, were "constitutionally appropriate." The decision and order of Judge Motley are reported at 436 F.Supp. 1153. We reverse that portion of the order which has been appealed and remand for the entry of an order in accordance with this decision.
Appellee Carmona has been convicted in both the state and federal courts on narcotics related charges. In May 1974 she was indicted on federal charges of conspiracy and two substantive counts of possession of cocaine with intent to distribute it. Eventually, these charges were satisfied by Carmona's pleading guilty to one substantive count. Undaunted by her federal indictment, she continued pursuing her trade. An authorized search of her apartment by the New York City Police Department on July 30, 1974 resulted in the finding of 33/8 ounces of cocaine, some marijuana and paraphernalia associated with drug dealing. She was indicted by a state grand jury in Bronx County on August 13, 1974. The most serious count in the indictment was for possession of a controlled substance in the first degree, an A-I felony with a mandatory minimum sentence of at least 15 years. When she was arrested on July 30, Carmona confessed to possession of the cocaine for the purpose of selling it to a buyer with whom she had already contracted for the sale. The appellee was also subsequently indicted by a state grand jury for sales of heroin to undercover agents on May 30, 1974 and June 24, 1974.
Carmona indicated her willingness to cooperate with the police so that she would be eligible for lifetime parole under N.Y. Penal Law §§ 65.00(1)(b), (3) (a)(ii). 2 However,
she adamantly refused to reveal her supplier of narcotics. The information she did offer was already known to the law enforcement agents. Therefore, having failed to provide material assistance she was not eligible under the statute for lifetime parole.
In satisfaction of all outstanding charges, Carmona was allowed to plead guilty to possession of a controlled substance (cocaine) in the second degree, an A-II felony. On January 31, 1975 her plea was accepted by Justice Cohen of the Supreme Court, Bronx County and, on March 10, 1975, she was sentenced to a term of imprisonment of six years to life. This was the least severe sentence allowed under the law. N.Y. Penal Law §§ 70.00-1, 70.00-2(a), 70.00-3(a)(ii).
Investigation had revealed that Carmona was living in a lavishly furnished apartment and enjoying a comparatively high standard of living without any known legal means of support. The reasonable inference is that appellee supported herself by drug trafficking as evidenced by her frequent narcotic-related encounters with the legal system in 1974.
Appellee Fowler also had extensive first-hand experience with the criminal justice system. Her prior record was succinctly set out by Judge Motley:
On April 27, 1972, Ms. Fowler was arrested and charged with criminal possession of a hypodermic instrument (Penal Law § 220.45) and criminal use of drug paraphernalia in the second degree (Penal Law § 220.50). She was adjudged guilty of both charges and sentenced to three years probation. On June 29, 1972, she was arrested and charged with prostitution (Penal Law § 230.00). She was found guilty on August 9, 1972, and was sentenced to one year's probation. On February 22, 1973, she was again arrested, charged with prostitution and found guilty on July 30, 1973. On July 10, 1973, she was arrested and charged with obstructing government administration (Penal Law § 195.05), possession of a dangerous drug (Penal Law § 220.05) (now repealed) and possession of stolen property (Penal Law § 165.45). These charges were dismissed because she pleaded guilty to another charge on July 30, 1973. On July 12, 1973, she was arrested and charged with petit larceny (Penal Law § 155.25), criminal possession of stolen property in the third degree (Penal Law § 165.40), and possession of a forged instrument in the second degree (Penal Law § 170.25). On July 30, 1973, she was convicted of petit larceny and conditionally discharged on three years probation.
436 F.Supp. at 1159 n.13.
On September 25, 1973 Fowler sold $20 worth of cocaine to a police undercover agent. After a jury trial, appellee was sentenced to a term of four years to life for an A-III felony. Her sentence was upheld unanimously by both the Appellate Division, 46 A.D.2d 838, 361 N.Y.S.2d 408 (3d Dep't 1974), and the New York Court of Appeals, People v. Broadie, 37 N.Y.2d 100, 371 N.Y.S.2d 471, 332 N.E.2d 338, cert. denied, 423 U.S. 950, 96 S.Ct. 372, 46 L.Ed.2d 287 (1975), in face of an attack that the sentence was unconstitutional because it constituted cruel and unusual punishment.
Appellees in their 28 U.S.C. § 2254 petitions launched a broad-based attack on the constitutionality of certain sections of the New York Penal Law, Criminal Procedure Law, and Correction Law, as amended in 1973, (1973 Drug Law) which apply to class A felony offenders, and under which Carmona and Fowler were sentenced. 3 Judge Motley held:
(I)n the case of Ms. Carmona and Ms. Fowler, the life sentences are so disproportionately severe as to violate the Eighth Amendment. The court does not thereby hold, of course, that the life sentences provided for class A felons could never be applied in any case consistent with the strictures of the Eighth Amendment.
436 F.Supp. at 1174 n.78. The major question on appeal is whether the mandatory maximum sentence of life imprisonment imposed on appellees is unconstitutional under the Eighth Amendment. 4
At the outset we recognize that the constitutional prohibition is not limited to sanctions which involve torture or other barbaric modes of punishment. Since Weems v. United States, 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793 (1910) there has been a growing acceptance of the proposition that punishment which is disproportionate to the gravity of the crime committed is violative of the Eighth Amendment. Downey v. Perini, 518 F.2d 1288 (6th Cir.), vacated and remanded, 423 U.S. 993, 96 S.Ct. 419, 46 L.Ed.2d 367 (1975); Griffin v. Warden, 517 F.2d 756 (4th Cir.), cert. denied, 423 U.S. 990, 96 S.Ct. 402, 46 L.Ed.2d 308 (1975); In re Lynch, 8 Cal.3d 410, 105 Cal.Rptr. 217, 503 P.2d 921 (1973); People v. Lorentzen, 387 Mich. 167, 194 N.W.2d 827 (1972); Wheeler, Toward a Theory of Limited Punishment: An Examination of the Eighth Amendment, 24 Stanford L.Rev. 838, 853 (1972); Granucci, "Nor Cruel and Unusual Punishments Inflicted:" The Original Meaning, 57 Calif.L.Rev. 839 (1969); Note, Drug Abuse, Law Abuse and the Eighth Amendment: New York's 1973 Drug Legislation and the Prohibition against Cruel and Unusual Punishment, 60 Cornell L.Rev. 638, 645-46 (1975); 44 Fordham L.Rev. 637 (1975). This principle was recognized by the district court here as well as the New York Court of Appeals in Broadie. We do not take issue therefore with the principle applied but rather find that the court below erred in its application.
There is no direct authority in the Supreme Court to guide us since, as the district court acknowledged, 436 F.Supp. at 1163, that Court has never found a sentence imposed in a criminal case violative of the Eighth Amendment merely because of its length. Downey v. Perini, supra...
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